Transcript historical roots of law

SOURCES OF LAW
What are the sources of Canadian law???
PRIMARY SOURCES
PRIMARY SOURCES OF LAW – Parts of a legal system that
have the longest historical development
Religion/Morality/Values
Historical
Customs & Conventions
Social & Political Philosophy
INFLUENCES OF RELIGION
 Canada’s laws strongly reflect Judeo-Christian Heritage (Mosaic
Law)
 16th century Christian missionaries and colonists brought their
religion to Canada…formed basis for our laws.
 What about religion in law today?? Cuts both ways:
 Charter Preamble
 Lord’s Day Act
MOSAIC LAW (1200 BCE)
Highlights
 Hebrew/Israelite Law
(Old Testament & Torah)
 Formed the basis of JudeoChristian moral teachings
in Western Legal System
 Based on God’s 10
Commandments given to
Moses
Changes from
Previous System
 More concern with
punishing a deliberate
action than an accident
 Punish the guilty person
regardless of status
 Emphasis on respect for
parents
EXAMPLES FROM MOSAIC LAW
• Thou shall not kill
• Thou shall not steal
• If a man steals an ox or a sheep and kills it or sells it, he shall
restore five oxen for an ox and four sheep for a sheep
• If a thief is found breaking in and be smitten that he die, there shall
be no blood shed for him
INFLUENCE OF MORALITY
 Moral philosophy strongly influences our laws – deals w/ what is




considered right and wrong
Morality and religion not the same…atheists can have strong
moral sense
Must use reason to understand acceptable vs. unacceptable
behaviour
Ex: Murder wrong not only because religion forbids it, but
because reason tells us so
What are some morals you feel are currently changing??
HISTORICAL INFLUENCES
GREEK LAW (400 BCE)
Highlights
Jury Duty
 First democratic society –
 Enormous juries (101,
citizen involvement (kinda)
WHY KINDA??
 Major contribution: JURY
DUTY!!
501, 1001)
 Jury also voted on sentence
 Best example is trial of
Socrates
DEATH OF SOCRATES
ROMAN LAW (450 BCE)
Highlights
Twelve Tables
 Basis of law for Western
 Promoted public
Europe
 2 Principles: 1) law must
be recorded & 2) justice
could not be left to judges
 Twelve Tables earliest
example of codified laws
prosecution
 Victim compensation
 Protection of lower class
(Plebs) from higher class
(Patricians)
LAWYERS
• As Rome grew, their society obviously became more complex
leading to the law being more complex
• It became necessary to ask experts to advice those who did not
understand the system
• These legal advisors were the forerunners of present-day lawyers
JUSTINIAN’S CODE
• Roman law became even more complex and Emperor Justinian I
(527-565 CE) decided to reform the law
• This code inspired the modern concept of justice (From Justinian)
• Law emphasized equity (The ideal of being fair, just, and impartial
and that people are equal under the law)
EARLY BRITISH LAW
• When the Romans left Britain (c. 410 CE) the Britons turned to
God to determine guilt or innocence.
• CAN YOU THINK OF ANY EXAMPLES???
TRIAL BY ORDEAL
• Judgements were made by making the accused go through a
particular “trial”
• If you survived a nasty punishment it showed God was on your side
• Examples: Trial by hot iron, Trial by hot water, Trial by cold water
(also called swimming a witch)
• Hot iron trial would have the accused bandage his hand after
holding a piece of hot iron and after a few days the bandage was
removed….if not infection he was innocent.
WHAT’S THE OBVIOUS PROBLEM???
TRIAL BY OATH HELPING
• For less serious offenses, required people who knew the accused to
swear on a Bible that he/she was innocent
PROBLEMS??
TRIAL BY COMBAT
• Introduced by Normans in 1066
• 2 parties involved engage in a duel – God will side with the
innocent PROBLEMS???
• Women & Children could hire individuals to fight for them
• Representative of today’s adversarial system
• 2 sides square off with lawyers….some stronger than others
• Today it’s now based on mental strength, not physical
• Europe uses the inquisitorial system
• Can be arrested and imprisoned before state produces evidence
FEUDAL SYSTEM
• No one is above the law….not always
• When William the Conqueror defeated England, his set a standard
that the King’s word was law
Divine Right to rule
Only answerable to God
•William also established the Feudal system where noblemen owned
and governed their lands
• No consistency in cases and punishments
• Henry II (William’s grandson) changed the system to what is now
the most common likeness to British and Canadian Law
COMMON LAW
• Henry II created “circuit judges” to create consistency in the law.
These judges traveled the country to try cases…there was no
codified law so they used their common sense
• They noticed similarities in cases so they began to try similar cases
in the same way. Stare Decisis: To stand by earlier decisions already
made. This is where the Rule of Precedent came from
• A precedent is something that has been done that can later serve as
an example or rule for how other things should be done
• The rule or precedent is PIVOTAL as it provides consistency to law
COMMON LAW CON’T
• It became well known what the outcomes would be before trial.
The law became “common” to all
• They also recorded their decisions, which is the basis of “case” law
today
•RAINMAKER – SCENE 24
MAGNA CARTA 1215 CE
MAGNA CARTA (Great Charter)
• Henry II system needed codifying, especially to take away DIVINE
RIGHT. In 1215 CE, angry barons forced King John (Henry’s
grandson) to sign the Magna Carta
KEY POINTS
• RULE OF LAW: equality before the law…king included
•HABEAS CORPUS: “You must have the body.” Arrestors must
bring the accused before a judge to determine the validity of their
arrest within a reasonable time.
• This historic right is so fundamental it is entrenched in our Charter
NAPOLEONIC CODE (1804 CE)
Highlights
 Created after French




Revolution
Very similar to Justinian &
Roman Law
Also known as ‘Civil Code’
Non-technical style made law
easy to understand (helped
unify France)
Foundation of Civil Code of
Quebec…precedent not as
important, more judges
discretion & scholarship
CUSTOMS & CONVENTIONS
CUSTOMS – Long-established way of doing something
that, over time, has acquired the force of law (SOCIETAL)
 Not formally a law, but a judge could recognize it as having the
force of a law through established use
CONVENTIONS - A way of doing something that has been
accepted for so long that it amounts to an unwritten rule
(POLITICAL)
 CASE: Patriation of the Canadian Constitution Pg 44 & 45
SOCIAL & POLITICAL PHILOSOPHY
SOCIAL
 Public reaction to events such as the Holocaust & US civil rights
in the 60s leads to changes in the law
POLITICAL
 Extreme groups – CCF during 30’s, Bloc for separatism
 Everyday politics – Conservative vs. Liberal ways of thinking
SECONDARY SOURCES
SECONDARY SOURCES OF LAW – Current laws that
enshrine a society’s values in written rules & regulations
that have been made by legislators & judges
(See Next Slide)
CONSTITUTIONAL
LAW
(Ex: Canadian Charter of
Rights and Freedoms)
STATUTES OR ACTS
(Ex: Criminal Code)
CASE OR COMMON LAW
(Ex: R. v. Robertson and Rosetanni)